TMI Blog

2017 (11) TMI 261

should not be initiated against the respondent official for apparently not complying with the judgment of the Hon’ble Supreme Court in the case of SRF LIMITED Vs COMMISSIONER OF CUSTOMS [2015 (4) TMI 561 - SUPREME COURT].
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Held that: - this Court is not inclined to take a lenient and casual approach in the matter, as the respondent officials cannot be allowed to go around and bypass the binding precedent of the Hon’ble Supreme Court in such matters and since the amount in question was paid by the petitioner clearly ‘under protest’, from their own resources awaiting the decision of the Hon’ble Supreme Court at that point of time, there was no question of allowing any further enquiry at the end of said Deputy Commissioner and refuse the refund on that ground.
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The amount actually was refunded after the order dated 14.12.2016 was passed by the respondent Deputy Commissioner, Mr. Ravindra Joshi but the tenor of the said order as well as the Affidavit filed in respect of the contempt notices issued by this Court, do not fully satisfy and in inspire any confidence that the respondents, in letter and spirit abide by the judgment of the Hon’ble Supreme Court and still seek a refu .....

direction to the respondent to refund the amount due to the petitioner and to quash the order passed by the Deputy Commissioner (Refunds) of the respondent- Customs Department, whereby, the respondent- Authority in the first instance had rejected the refund applications of the petitioner-company seeking refunds of ₹ 58,02,005/- and ₹ 5,82,63,745/- respectively under the two orders, solely on the ground that, the refund of the duty due to the petitioner in accordance with the judgment of the Hon ble Supreme Court in the case of SRF Limited vs. Commissioner of Customs, Chennai, rendered on 26.03.2015 in Civil Appeal No.9440/2003 was refused and not given on the ground that Review application was filed by the Customs Department before the Hon ble Supreme Court against the aforesaid judgment dated 26.03.2015. 2. The said Review petition also came to be dismissed by the Hon ble Supreme Court on 15.07.2016. But since, the respondents, suo- motu, did not take any action for refund of the aforesaid amounts due to the petitioner-company, the petitioner has approached this Court by way of filing these writ petitions under Article 226 of the Constitution of India. 3. The learned .....

is due to the petitioner-assessee Company in terms of the said Supreme Court judgment and quantum was also determined, but taking shelter under Section 28-D of the Customs Act, 1962 in Chapter V-A, which applies only if the duty is paid under Section 28-C of the Act, which is not applicable in the present case, since the duty was paid at the rate of 12.5% under protest by the petitioner-assessee only awaiting the decision of the Supreme Court in the aforesaid case and once that decision came in favour of the petitioner-assessee in the case of SRF Limited, this Court in the previous order dated 20.09.2016 had clearly expressed that the respondent-authority can pass an appropriate order for refunding the excess customs duty paid by the petitioner-assessee. The respondent-authority has shown audacity to refuse to refund on the ground that Section 28-D allows a presumption that the incidence of excess customs duty has been passed to the customers, whereas no such presumption is available to be drawn in the present case and no other evidence has been brought on record by the said authority to establish that such incidence has been passed by the petitioner Company to its customers. This .....

petitioner also submits that refund amount due to the petitioner has been credited. However, he further claimed that interest part has not been paid. That question will be decided later on. Learned counsel for respondents also prays for some time to file affidavits of both the officers of Respondents-Custom Department, namely, Chief Commissioner of Customs and Deputy Commissioner (Refunds) in pursuance of the order passed by this Court earlier on 20th September 2016, initiating contempt proceedings against them. Time prayed for is allowed. List again on 11.1.2017. Presence of the officers is dispensed with for the time being, subject to further orders. 3. Finally, the respondent Deputy Commissioner (Refunds) Mr. Ravindra Joshi passed the following refund order on 14.12.2016. The said order is also quoted hereinbelow: I hereby sanction refund amount of ₹ 5,82,63,745/- (Rupees Five Crore Eighty Two Lakh Sixty Three Thousand Seven Hundred and Forty Five only) to M/s. Supertron Electronics Limited, 12/1, 1st Floor, CVR Building, Hosur Road, Wilson Garden, Bengaluru - 560 027. 4. In compliance with the directions of this Court to show cause as to why contempt action should not be .....

e order passed by him on 14.12.2016 quoted above, has himself stated in paragraph No.8 that such an exercise having not been undertaken, the amount claimed by the petitioner requires to be refunded forthwith…….. In view of this, any effort on the part of the respondent Official, to even now make an effort to do so with reservations, will be in the breach of the decision of the Hon ble Supreme Court and the refund order passed by the authority himself. 6. As to why contempt action should not be taken against them, the respondent officials, namely, Deputy Commissioner and the Chief Commissioner of Customs have filed their Affidavits dated 6.1.2017 and paragraph Nos.7 and 3 and 4 of both the Affidavits are quoted below, one filed by Mr. Ravindra Joshi, S/o Mr. Jagatram Joshi, Deputy Commissioner of Customs (Refunds), Bangalore and Mr. Rajiv Bhushan Tiwari, S/o B.V. Tiwari working as Chief Commissioner of Customs, Bangalore Zone, Bangalore. Affidavit of Mr. Ravindra Joshi 7. I submit that none of my actions were intended to disobey the orders of this Hon ble Court or to lower the Majesty of this Hon ble Court. I have highest regards to this Hon ble Court and I would not a .....

quiry in the matter, which cannot be permitted. 9. The petition is therefore disposed of with the following directions: (i) The cost of litigation amounting to ₹ 59,800/- deposited by the respondent Deputy Commissioner (Refunds) shall stand forfeited and the same be made over to the petitioner - company as costs. (ii) The respondent Department shall further pay the costs of ₹ 1 lakh to the petitioner as damages for their unnecessary and casual approach in trying to avoid the benefit of the binding precedent of the Supreme Court decision to the petitioner Company. (iii) The respondent Deputy Commissioner will determine the quantum of interest payable to the petitioner under Section 27A of the Act on such refund made to the petitioner from the date of deposit till the date of refund, within the period of one month from today and pay the same to the petitioner Company and a compliance report will be submitted in this court. (iv) In view of the refund actually made now to the petitioner upon the considered order passed by the respondent himself holding the petitioner company entitled to the refund and refund having been made, no further enquiry in the matter at the end of D .....